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Qwest Corp. v. Gonzales Boring & Tunneling Co., Inc.

United States District Court, W.D. Washington, Tacoma

July 29, 2019



          Ronald B. Leighton United States District Judge.

         THIS MATTER is before the Court on Plaintiff CenturyLink's Motion for Partial Summary Judgment. The Washington State Department of Transportation hired Defendant Scarsella Bros. to bore under Harrison Avenue in Centralia, as part of a larger highway project. The specific job involved installing a 36” casing for a carrier culvert under Harrison. Scarsella sub-contracted Defendant Gonzales Boring & Tunneling to bore the hole. Gonzalez ultimately damaged CenturyLink's conduit in the area, and CenturyLink sued. The case and the Motion relate to the requirements of Washington's “call before you dig” statute, the Underground Utility Damage Prevention Act, Chapter 19.122 RCW.

         The UUDPA requires excavators to notify a locating service, which in turn notifies those with underground utilities in the area, so that those utilities can be located and marked, so that damage to them can be avoided. Markings made in response to such a call are valid for 45 days. RCW 19.122.030(6)(ii)(c). A facility owner can waive the UUDPA's notification and marking provisions. RCW 19.122.080.

         On March 5, 2015, Gonzalez called[1] the locator service to notify CenturyLink that it planned to bore under Harrison Ave. CenturyLink hired South Bay Excavating to locate and mark CenturyLink's utilities (conduit containing fiber optic cable) in the area. South Bay “potholed” the conduit[2], and its subcontractor, Locating Inc., marked it. Gonzales began excavating on March 26, but WSDOT suspended the work to negotiate a price adjustment to install a smaller, 20-inch casing for a carrier pipe, based in part on the presence of utilities in the area.

         CenturyLink claims that South Bay's marking expired on April 23, 2015. Gonzales claims it “maintained” the marking during the delay. On May 8, WSDOT informed CenturyLink that Gonzalez's boring would resume on May 11. CenturyLink sent an internal email acknowledging this fact the same day:

Scarsella's subcontractor Gonzales Boring will begin boring and jacking a 20” steel casing starting Monday morning May 11, 2015 for the pipe at the SE corner of Harrison Ave. Interchange next to Papa Pete's Pizza.

Larkin Decl. Dkt. # 63 at Ex. 10.

         South Bay asked CenturyLink whether Gonzalez would be excavating in the same area as another upcoming project, and CenturyLink's response email demonstrates that it was aware boring was about to resume, and where it would occur:

[I]t is further west in front of Papa Pete's Pizza. We potholed the conduit/fiber [at Harrison Ave] already.

Id. Gonzalez argues that this email demonstrates that CenturyLink believed its facilities had already been physically located and marked, and that it did not require-that it waived its right to-any further notice of the proposed work.

         Gonzalez resumed its work on May 12. A week later, it bored into and damaged CenturyLink's conduit, and the fiber optic and copper cables in it, under Harrison Ave. CenturyLink sued, claiming the damages exceed $500, 000. It asserts a UUDPA violation claim, and negligence per se and common law negligence claims. It seeks actual and treble damages (under the UUDPA), claiming that Gonzalez's and Scarsella's violations were “wanton and malicious.”

         It now seeks summary judgment on each of its liability theories, leaving for trial the amount of its damages. It argues that because the initial markings expired, Gonzalez and Scarsella are, effectively, strictly liable for the damage as a matter of law.

         Gonzalez and Scarsella argue that technical noncompliance with the UUDPA is not negligence per se, and that in any event, CenturyLink's admitted knowledge that its facilities had been recently located and marked, and that the boring work was about to resume, is a waiver of its right to be notified about the work a second time. This argument is based on CenturyLink's express acknowledgment (in the May email) that the work would resume, and its assurance that its conduit in the area had already been “potholed.” Neither party substantially addresses the element of causation, but there is no evidence that CenturyLink would have re-potholed and remarked its conduit a second time accurately.

         Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The ...

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